Appeal of A.B., on behalf of her children A.B., D.B., and K.B., from action of the Board of Education of the Kenmore-Tonawanda Union Free School District regarding residency and transportation.

Decision No. 16,926

(July 19, 2016)

Harris Beach, PLLC, attorneys for respondent, Marnie E. Smith, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Kenmore-Tonawanda Union Free School District (“respondent”) that her children are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

The record indicates that, in January 2012, two of petitioner’s children, A.B. and K.B., began attending school in respondent’s district.  Petitioner’s third child, D.B., has never attended school in the district and is currently enrolled in a charter school with transportation provided by respondent’s district.  According to the record, in or about July 2013, petitioner and her children were evicted from their in-district address.  Petitioner asserts that they were evicted after petitioner reported a basement sewage backup to the health department.  As a result, petitioner moved in with her parents at an address located within the Buffalo City School District (“Buffalo address”).  At that time, petitioner indicated that she and her children were temporarily residing with her parents and the district determined that the family was homeless within the meaning of McKinney-Vento and allowed the children to continue to attend school in the district.  The district continued to provide services to petitioner’s children for the 2013-2014 school year and the beginning of the 2014-2015 school year.

In October 2015, the district’s Homeless Liaison (“liaison”) conducted a home visit, at which time she noted that the residence appeared to be adequate and otherwise habitable.  The record indicates that based on the liaison’s home visit, the length of time that petitioner and her children had resided at the Buffalo address, and communications with staff at D.B.’s charter school, the district determined that petitioner was no longer homeless within the meaning of McKinney-Vento.  By letters dated November 20, 2015, December 4, 2015, and January 22, 2016, the liaison notified petitioner of the district’s determination that her children were “ineligible for services under the McKinney-Vento Law within the [district].”  The letters further explained that petitioner’s children would be excluded from the district’s schools after the 2015-2016 school year.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 13, 2016.

Petitioner claims that she and her children are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason, and are therefore homeless within the meaning of McKinney-Vento.  Specifically, petitioner asserts that they reside with her parents outside respondent’s district because they were evicted from their in-district residence.  Although it is not entirely clear from the petition, petitioner appears to assert that her living situation is temporary and that the Buffalo address is inadequate because it is temporary.

Respondent maintains that the students are not homeless within the meaning of McKinney-Vento and asserts, among other things, that petitioner failed to show that the district’s determination was arbitrary, capricious, or contrary to law.  Respondent claims that the family has been residing at the Buffalo address since in or about July 2013 and that petitioner failed to show that the living situation is inadequate.

 Education Law §3209(1)(a) defines “homeless child” as:

(1)a child or youth who lacks a fixed, regular, and adequate night-time residence, including a child or youth who is:

(i)sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

(ii)living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

(iii)abandoned in hospitals;

(iv)awaiting foster care placement; or

(v)a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iv) of this subparagraph or subparagraph two of this paragraph; or

(2)a child or youth who has a primary nighttime location that is:

(i)a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or

(ii)a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings ....

Both Education Law §3209 and §100.2(x) of the Commissioner’s regulations conform to the definition of “homeless children and youths” in McKinney-Vento.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

On the record before me, I find that petitioner’s children do not fit the definition of homeless children under State or federal law.  Petitioner asserts that she and her children are homeless because they lack a fixed, regular, and adequate nighttime residence and are sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason.  In support of her argument, petitioner states that her family became homeless and relocated to her parents’ Buffalo address in June 2013 due to loss of housing after they were forced to leave their in-district residence.  Petitioner asserts that they “live with grandma [and] grandpa on a day to day basis” and that the children “have [sic] own room for privacy reasons only.”  However, other than petitioner’s conclusory assertion, the record contains no evidence to indicate that such living arrangement is inadequate.  According to the petition, petitioner and her children are sharing housing with two other individuals and petitioner pays rent each month.  As respondent notes, the Buffalo address has three bedrooms and one or two bathrooms, was well-kept, appeared to have running water and electricity, and had adequate heat.  Petitioner did not submit a reply or any evidence to rebut this assertion or to explain how the living arrangement is inadequate (see e.g. Appeal of D.W., 55 Ed Dept Rep, Decision No. 16,812).

Based upon the record before me, petitioner has failed to demonstrate that she and her children currently lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other temporary living accommodations set forth in Education Law §3209.  Nor has petitioner established that her current residence is temporary or transitional.  Petitioner asserts that she and her children are “living with grandma [and] grandpa on a day to day basis” and submits an unsworn statement from her mother stating that the “housing is not a permanent situation.  I feel she should be out on her own and would like her out as soon as possible.”  However, the record indicates that petitioner and her children have been living outside the district since July 2013, and there is no evidence that petitioner needs to vacate her current residence or that there is a time limit as to how long she may reside there (see Appeal of Z.P. and D.P., 54 Ed Dept Rep, Decision No. 16,639).

While it is unfortunate that petitioner was evicted from her in-district residence, on this record, I cannot find that respondent’s determination that petitioner’s children are not homeless was arbitrary or capricious.

In light of this disposition, I need not address the parties’ remaining contentions.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on her children’s behalf at any time should circumstances change and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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